09-2644-cr
USA v. Rabbani
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C ITATION TO A SUM M AR Y ORD ER FILED A FTER
J AN UA RY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY F EDER AL R U L E O F A PPELLATE P RO CED UR E 32.1 A N D TH IS
C OU R T ’ S L OC AL R ULE 32.1.1. W H EN C ITIN G A SU M M A R Y O RD ER IN A DO CU M EN T FILED W ITH TH IS C OU R T , A PA RTY
M UST CITE EITHER THE F EDER AL A P P EN DIX OF AN ELECTRO NIC D ATA BASE ( W ITH TH E N OTA TIO N “ SU M M A R Y
OR DER ”). A PAR TY CITING A SUM M AR Y ORD ER M UST SERVE A C OPY OF IT ON A NY PA RTY NO T REPR ESENTED BY
CO UN SEL .
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 24th day of June, two thousand ten.
PRESENT: WILFRED FEINBERG,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_______________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 09-2644-cr
MANSOOR RABBANI, also known as
Mansoor Rabbini
Defendant-Appellant.
________________________________________________________
Appearing for Appellant: KIMBERLY A. SCHECHTER, Federal Public Defenders Office
for the Western District of New York, Buffalo, New York.
Appearing for Appellee: STEPHAN J. BACZYNSKI, Assistant United States Attorney,
for William J. Hochul, United States Attorney for the
Western District of New York, Buffalo, New York.
Appeal from the United States District Court for the Western District of New York
(Richard J. Arcara, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED and
DECREED that the judgment of the district court is AFFIRMED.
Defendant Mansoor Rabbani appeals from a June 9, 2009 judgment of the United States
District Court for the Western District of New York (Arcara, C.J.), sentencing him to 36 months
of imprisonment. We assume the parties’ familiarity with the facts and procedural history, which
we reference only to the extent necessary to explain the order of this court.
A jury found Rabbani guilty of four criminal offenses in connection with his attempt to
bring an alien, Iftikhar Virk, into the United States for financial gain.1 A border patrol agent
detained and arrested Rabbani and Virk as they attempted to cross into the United States in
Rabbani’s car. The documentation proffered by Virk at the border turned out to belong to
Jaskaran Singh, an individual proven at trial to be an acquaintance of Rabbani’s. Further
evidence showed that Rabbani called Singh the day before his arrest and that Singh attempted to
call Rabbani four times on the morning following Rabbani’s arrest. Virk testified that he paid
Rabbani $8000 for passage to the United States, and that Virk obtained the money from a friend
in Canada, Kamaran Khan, who was to be reimbursed, and was reimbursed, by Virk’s brother,
Zolfgar Virk.
On appeal, Rabbani challenges (i) an evidentiary ruling allowing into the record his and
Singh’s cell phone billing statements,2 including call histories, as well as (ii) the district court’s
1
Rabbani was convicted of bringing in and harboring aliens for the purposes of financial
gain, 8 U.S.C. §§ 1324(a)(1)(A)(iv), and (a)(1)(B)(i), attempting to bring in and harbor aliens by
means of a motor vehicle for the purpose of financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), making
a materially false statement within the jurisdiction of the executive branch of the U.S.
government, 18 U.S.C. § 1001(a)(2), and misuse of a passport, 18 U.S.C. § 1544.
2
For the sake of clarity we reference “Singh’s cell phone billing statement.” The record
is clear, however, that the relevant cellular account was under the name of Tanvir Ahmad, a
friend of Singh. Singh testified that Ahmad had two phones registered under a single cellular
plan, that Singh used one of those phones, and that Singh and Ahmad split the bill.
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refusal to include in its jury charge a missing witness instruction with respect to Kamaran Khan
and Zolfgar Virk. We review both rulings for abuse of discretion. See, e.g., United States v.
Mercado, 573 F.3d 138, 141 (2d Cir. 2009); United States v. Gaskin, 364 F.3d 438, 463 (2d Cir.
2004). We require a showing of actual prejudice in order to reverse on the grounds of a missing
witness charge. Gaskin, 364 F.3d at 463.
[a] Admission of Cell Phone Call Records
Rabbani argues that the district court abused its discretion in admitting his and Singh’s
cell phone records because of numerous occasions where an outgoing call from Rabbani to
Singh was identified on Rabbani’s telephone bill but no corresponding incoming call was
recorded on Singh’s telephone bill. The court ruled that any putative inconsistencies between the
records would pertain to the weight of the evidence, not admissibility. “The determination of
whether a record is sufficiently reliable to warrant its admission is within the ‘sound discretion’
of the district court.” United States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995). This Circuit has
“adopted ‘a generous view’ of the business records exception, ‘construing it to favor [] the
admission of evidence . . . if it has any probative value at all.’” Id. (quoting United States v.
Freiden, 849 F.2d 716, 722 (2d Cir. 1988)). A review of the relevant exhibits suggests that the
records were not in any way inconsistent. Even if the records were inconsistent, any error in their
admission was harmless because substantial evidence established a relationship between Rabbani
and Singh and their attempts at communication immediately following Rabbani’s arrest. See,
e.g., United States v. Paulino, 445 F.3d 211, 219 (2d Cir. 2006) (finding harmless error when
“other evidence overwhelmingly established [the defendant’s] culpability with respect to the
charged crime.”).
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[b] Missing Witness Instruction
“A missing witness charge permitting the jury to infer that the testimony of an
unproduced witness would have favored one party is appropriate if production of the witness is
‘peculiarly within [the] power’ of the other party.” United States v. Nichols, 912 F.2d 598, 601
(2d Cir. 1990) (quoting United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988)). Rabbani
asserts that because Kamaran Khan and Zolfgar Virk were peculiarly within the power of the
government to produce as witnesses, the district court erred in denying Rabbani’s request to
charge the jury with a missing witness instruction. “[W]hen a witness is equally available to both
sides, the failure to produce is open to an inference against both parties.” Torres, 845 F.2d at
1169 (internal quotations omitted and emphasis removed). “Whether or not such a ‘missing
witness’ charge should be given lies in the sound discretion of the trial court.” United States v.
Miranda, 526 F.2d 1319, 1330-31 (2d Cir. 1975). “We are particularly disinclined to second-
guess [district courts’] decisions where, as in this case, a judge refrains from commenting on the
inference to be drawn on the facts before the jury and allows counsel instead to argue the
inference.” Gaskin, 364 F.3d at 463 (internal quotation marks omitted).
Rabbani has made no showing that the government “had it peculiarly within its power to
produce” Khan. United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994). “‘[T]he 'availability'
of a witness . . . depend[s] . . . on all the facts and circumstances bearing upon the witness's
relation to the parties, rather than merely on physical presence or accessibility.’” Torres, 845
F.2d at 1170 (quoting United States v. Rollins, 487 F.2d 409, 412 (2d Cir. 1973)). Rabbani has
not shown that Khan was ever even accessible to the government. The government stated at trial
that they first learned of Khan’s existence during Virk’s testimony, and, in response to the court’s
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inquiry as to Khan’s whereabouts, the government stated that “[t]here is no hope of getting an
address or any identifiers on him.”
With respect to Zolfgar Virk, the record shows that he was equally available to both
Rabbani and the government. While Rabbani did not learn of Zolfgar Virk until he was
mentioned during Iftikhar Virk’s testimony during trial, Rabbani also learned that Zolfgar lived
in Brooklyn, N.Y. with Iftikhar. Rabbani could have requested an adjournment in order to
subpoena Zolfgar as a witness. See United States v. Crisona, 416 F.2d 107, 118 (2d Cir. 1969)
(explaining that the court did not err in charging the jury that “[i]n a federal criminal trial both
the government and a defendant are entitled to receive from the clerk of the court a subpoena
calling for the attendance of a witness, and no matter where the witness lives in the United
States, he is required to appear when served,” and that the failure of either side to call a witness
who could have been served with such a subpoena allows the jury to “infer that his or their
testimony might have been unfavorable to either the government or to a defendant . . . [or] to
draw no inference at all.”). In her closing statement, moreover, Rabbani’s counsel was permitted
to make a missing witness argument to the jury. See Gaskin, 364 F.3d at 463. Accordingly, the
district court did not abuse its discretion in refusing to deliver a missing witness instruction to the
jury.
For the reasons stated above we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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